UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-11145

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MICHAEL FITZGERALD WILSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

February 22, 1996

Before KING, STEWART and PARKER, Circuit Judges.

ROBERT M. PARKER:

Appellant Michael Fitzgerald Wilson ("Michael Wilson") was

convicted of conspiracy to posses s with intent to distribute and

distribution of more than 50 grams of crack cocaine, aiding and

abetting the use or carrying of a firearm during a drug trafficking

crime, three counts of use of a telepho ne to facilitate a drug

trafficking crime, and three counts of aiding and abetting money

laundering. The trial court sentenced him to life for the

conspiracy conviction, plus four years on the telephone counts and

twenty years on the money laundering counts, all to run concurrent1 We affirmed the convictions of Michael Wilson's codefendants, Clark, Wilson, Levels and Coffman in United States v.

Clark , 67 F.3d 1154 (5th Cir. 1995).

2 with the life sentence. He was also sentenced to sixty months on

the gun count to run consecutive to all other sentences. The trial

court imposed five years of supervised release and a $25,000 fine.

Michael Wilson appeals. We affirm in part and reverse in part.

FACTS AND PROCEEDINGS BELOW

Michael Wilson was charged with c onspiring with Wayland

Wilson, Koda Cook, Terry Dwayne Leve ls, Deann Coffman and Donel

Clark to manufacture and distribute crack cocaine, a s well as

related substantive offenses. 1 Michael Wilson's trial was severed

from his co-defendants' trial due to the illness of his first

attorney. Following a jury trial, Michael Wilson was convicted on

8 of 12 Counts.

Michael Wilson and his brother, Wayland Wilson, owned a

Dallas car dealership called Motor Market. Cook, who began buying

cocaine from Mich ael Wilson in 1989, was hired as a handyman at

Motor Market in the Spring of 1990. By the middle of 1991, he was

also involved in Michael Wilson's drug business. The co-defendants

cooked powder cocaine into crack cocaine, packaged it and

distributed it.

In May 1992, law enforcement officers obtained and executed

search wa rrants for Motor Market and various residences, seizing

drugs, guns, cars, currency, records of drug transactions and

various drug production paraphernalia.3 SUFFICIENCY OF THE EVIDENCE

Michael Wilson challenges the sufficiency of the evidence to

support his convictions on the money laundering counts, the

telephone counts and the firearm count.

a. Standard of Review

We must affirm the jury verdicts if a reasonable trier of fact

could conclude from the evidence that all the elements of the

offenses were established beyond a reasonable doubt, viewing all

evidence in the light most favorable to the verdict and drawing all

reasonable inferences from the evidence to support the verdict.

United States v. Sanchez

, 961 F.2d 1169, 1173 (5th Cir.), cert.

denied , 506 U.S. 918, 113 S. Ct. 330, 121 L. Ed. 2d 248 (1992).

b. Money Laundering Counts

Michael Wilson contends that the evidence was insufficient to

support his convi ctions on three money laundering counts, which

charge Wilson with violating 18 U.S.C. § 1956(a)(1)(B)(i). In

order to convict under (B)(i) the government must prove that Wilson

(1) conducted or attempted to conduct a financial transaction, (2)

which the defendant knew involved the proceeds of unlaw ful

activity, and (3) with the intent to conceal or disguise the

nature, location, source, ownership, or control of the proceeds of

unlawful activity. United States v. Garza , 42 F.3d 251, 253 (5th

C ir. 1994), c ert. denied

, 115 S. Ct. 2263 (1995). The jury

returned guilty verdicts on Count 9, which involved the purchase of2 The house was titled in the names Michael Wilson, Wayland

Wilson and Bonnie Gill. In U nited States v. Clark , 67 F.3d 1154

(5th Cir. 1995)

, we considered whether Wayland Wilson's conviction

under 18 U.S.C. § 1956(a)(1)(A)(i) was supp orted by sufficient

evidence. There, the question was whether the house was purchased

with the intent to promote further drug trafficking and we found

that the evidence was sufficient to support the conclusion that it

was. C lark

, 67 F.3d at 1160-1161. Here we consider a separate

question: whether the evidence presented during Michael Wilson's

trial was sufficient to support a conviction under (B)(i), rather

than (A)(i).

4 a Jaguar automobile, Count 10, a house 2 and Count 11, a boat.

Wilson first contends that there was no evidence that the

funds used to purchase these three items were proceeds of unlawful

activity or that Wilson knew they were the proceeds of unlawful

activity. Wilson characterizes the evidence at trial as

establishing only that Wilson used cash for these transactions and

that Wilson had income both from legitimate business and from drug

transactions.

Second, Wilson contends that the government did not establish

the third "concealment" element

-- in this case, Wilson's intent to

conceal or disguise t he nature, location, source, ownership or

control of the proceeds of unlawful activity. He relies on

language from United States v. Sanders , 929 F.2d 1466 (10th Cir.)

cert. denied

, 502 U.S. 846, 112 S. Ct. 143 (1991), which this Court

cited with approv al in U nited States v. Gonzalez-Rodriguez

, 966

F.2d 918, 925 (5th Cir. 1992):

[B]y the express terms of the [money laundering] statute,

a design to conceal or disguise the source or nature of

the proceeds is a necessary element for a money laundering conviction.

In Sanders

, a man and wife purchased automobile s with drug5

proceeds. One of the vehicles was titled in their daughter's name.

However, because they readily identified themselves to the sales

person and conspicuously used the a utomobiles "making the

association of these vehicles with the [defendants] obvious to law

enforcement," the Tenth C ircuit reversed their money laundering

convictions for failure to prove the concealment e lement.

Similarly, Wilson readily identified himself and his ownership of

Motor Market to the sellers of the car, house and boat. The

paperwork prepared in connection with those tra nsactions showed

Wilson's name on the house title, while title to the car and boat

were taken in the name of Motor Market.

The government responds that the jury could reasonably infer

that the funds used for the purchases were drug proceeds, based on

the evidence that (1) the purchase money was bundled in the same

way that the drug organization bundled their cash, (2) Wilson was

a principal in large-scale drug trafficking activities, whi c h

yielded large quantities of cash, and (3) Cook, a co-defendant,

testified that Michael Wilson was selling cocaine for a living when

he went to work for Motor Market in the Spring of 1990.

As to the concealment element, there was evidence that Michael

Wilson purchased the Jaguar through a broker and asked the seller

to tell the IRS that the car was damaged and sold for less than

half the actual price. When the house was purchased, Wilson said

t he cash was from an inheritance, which he told Cook was his

"cover" for the cash purchase. Finally, the boat was titled

jointly in the names Motor Market and Cook, and Cook testified that6

he and Michael Wilson discussed the fact that Cook had received a

settlement from his job that could explain the cash purchase.

Having reviewed the record, we conclude that a reasonable jury

could have found every element of 18 U.S.C. § 1956(a)(1)(B)(i) on

each of these purchases beyond a reasonable doubt.

c. The telephone counts.

Michael Wilson was charged in Counts 4 and 5 with using a

telephone to facilitate a drug transaction. The conversations were

recorded by means of a wireta p, and the recordings and

transcriptions of the conversations were admitted into eviden ce.

The conversation in Count 4 was between Coffman and Michael Wilson.

Michael Wilson argues that, assu ming the conversation concerned

drug dealing, it was a status report about a bookkeeping

discrepancy, and thus under U nited States v. Gonzalez-Rodriguez

,

966 F.2d at 922, it was insufficient to sustain a conviction. In

United States v. Clark we rejected this argument. Coffman was

convicted for participating in the same conversation which we held

was "more than the mere conveyance of information" and "constituted

t he actual conducting of the drug operation." C lark

, 67 F.3d at

1162.

The conversation in Count 5 is between Michael Wilson and an

unidentified male. Count 5 alleged that Wilson used a telephone to

facilitate a felony by discussing with the unknown individual

acquisition of a narcotic controlled substance. Wilson asked if

another person "still got that thang" and says "call him, let's

hear from him." The conversation can reasonably be construed to7

concern negotiations for the purc hase of "that thang." Cook

testified that the conversation was between Wilson and David "Dink"

R ichardson. Cook's testimony ties the conversation to a cocaine

del ivery that Richardson had previously made for Wilson, which

allowed the jury to infer that the "thang" being discussed was

cocaine.

We therefore find that Michael Wilson's telephone count

convictions were supported by sufficient evidence.

d. The firearm count.

Michael Wilson was convicted in Count 2 of using and carrying

a firearm in connection with a drug trafficking crime in violation

of 18 U.S.C. § 924(c)(1), based on the seizure of several firearms

from a residence owned by Michael Wilson located on Etta Drive.

Wilson was not present at the location where the guns were seized,

and his fingerprints were not recovered from any of the weapons.

No witness testified to seeing Wilson use or carry any of the

specific weapons named in Count 2. No drugs were recovered from

the location where the weapons were seized, although Cook testified

that drug money was counted and stored at the Etta Drive house.

Section 924(c) requires the imposition of criminal penalties

if the defendant, "[d]uring and in relation to any crime of

violenc e or drug trafficking crime . . . uses or carries a

firearm." The government argues that conviction under § 924(c)(1)

does not depend on proof that the defendant had actual possession

of the weapon or used it in any a ffirmative manner, but only

r equires that the firearm was available to provide protection to8

the defendant in connection with his engagement in drug

trafficking, citing United States v. Willis , 6 F.3d 257, 264 (5th

Cir. 1993).

The Supreme Court overruled Willis when it recently held that

conviction for use of a firearm under § 924(c) requires evidence

sufficient to show active employment of a firearm by a defendant.

Bailey v. United States , 116 S.Ct. 501 (1995). The Supreme Court

specifically considered and rejected arguments by the government

that § 924(c) criminalize d the storing of a weapon near drugs or

drug proceeds and concealing a weapon nearby to be ready for

imminent confrontation during a drug transaction. Id. at 508.

We th erefore find the evidence insufficient to support

Wilson's conviction on Count 2.

RECUSAL MOTION

Michael Wilson next challen ges his convictions on the basis

that the district court erred in denying his motion to recuse the

t rial judge. We review the denial of recusal motions under an

abuse of discretion standard. U nited States v. Jordan

, 49 F.3d 152

(5th Cir. 1995). We must determine whether a reasonable and

objective per son, knowing all of the facts, would harbor doubts

concerning the judge's impartiality. L iljeberg v. Health Services

Acquisition Corp.

, 486 U.S. 847, 860-61, 108 S. Ct. 2194, 2203, 100

L. Ed. 2d 855 (1988).

Michael Wilson's t rial was severed from that of his codefendants, and the co-de fendants were tried first. His recusal

motions were based on the fact th at the trial judge ruled on a9

number of motions, including a motion to suppress evidence, in the

first trial before Michael Wilson presented substantially identical

motions in his trial. The trial court also had access to

information in the co-defendants' presentence reports that

implicated Wilson prior t o Wilson's trial. Wilson particularly

focused on a comm ent made by the district court at the earlier

sentencing hearing that "Mike Wilson's primary responsibility was

in the cocaine and cocaine base end," alleging that the comments

"indicate that the court has predetermined Michael Wilson's guilt

in violation of the Due Process Clause of the Fifth Amendment."

The trial court summarily denied the motion, noting that "these

comments concern Wilson's guilt or innocence, which is a matter

that will be determined by a jury, not by the Court."

Wilson's motion acknowledged that the trial court had no

personal bias or prejudice, and bases his claim on the Due Process

Clause rather than on the recusal statutes, 28 U.S.C. §§ 144 and

455. Although he relies on cases that discuss the recusal

statutes, he makes no argument that those statutes were violated.

Rather, he implies, without explaining why or citing authority,

that his due process right to an impartial tribunal requires

reversal in circumstances that pass muster under the statutes and

their interpretive case law. The government's reply likewise cites

to cases interpreting the recusal statutes and does not respond to

Wilson's contention that the Due Process Clause affords him relief

not available under the statutes.

Opinions formed during the prior proceedings do not constitute10

a basis for statutory recusal unless the opinion displays a deepseated favoritism or antagonism that would make fair judgment

impossible. L iteky v. United States, ___U.S.___, 114 S. Ct. 1147,

127 L. Ed. 2d 474 (1994). This Court has recognized that a trial

judge is not disqualified because he presided over the trial of a

co-defendant or accepted the guilty plea of a co-defendant and

that, absent alle gations that the judge harbored a personal bias

that would disqualify him, the denial of a motion to recuse is not

error. U nited States v. Partin

, 552 F.2d 621, 639 (5th Cir.),

cert. denied , 434 U.S. 903, 98 S. Ct. 298, 54 L.Ed.2d 189 (1977).

We see no basis for holding that the D ue Process Clause

extends the necessity for recusal beyond the statutory requirements

in this circumstance. The district court's denial of Wilson's

recusal motion was not an abuse of discretion.

DID FORFEITURE RESULT IN DOUBLE JEOPARDY?

a. Standard of review.

This Court reviews the denial of double jeopardy claims d e

novo

. U

nited States v. Cruce

, 21 F.3d 70, 74 (5th Cir.), cert.

denied , ___U.S.___, 115 S. Ct. 174 (1994).

b. Administrative forfeiture

Wilson did not file a claim or contest the administrative

forfe iture and "a summary forfeiture, by definition, can never

serve as a jeopardy component of a double jeopardy motion." U nited

States v. Clark

, 67 F.3d at 1163, quoting United States v. ArreolaRamos

, 60 F.3d 188 (5th Cir. 1995). Wilson contends that he could

not afford to post bon d. He justifies his failure to file a11

pauper's affidavit by claiming that it would require him to

disclose information that would incrimin ate him and he chose to

invoke his right to remain silent. However, his stated reasons for

fai ling to file a claim are not evident from the record of the

forfeiture proceeding, to which he never became a party. There is

no basis in the record for distinguishing this case from Clark' s

holding on administrative forfeiture.

c. Judicial forfeiture.

The property forfeited pursuant to judici al forfeiture was

stipulated to be proceeds of illegal activity under 21 U.S.C. §

881(a)(6), rather than property used to facilitate unlawful

activity. Wilson's contention that the forfeiture of property

derived from drug proceeds should be cons idered prior punishment

was rejected by this Circuit in U nited States v. Tilley

, 18 F.3d

295, 300 (5th Cir.), cert. denied , 115 S. Ct. 574 (1994).

AVAILABILITY OF INFORMANTS

a. Standard of review.

The grant or denial of disclosure of an informant is reviewed

under an abuse of discretion standard. U nited States v. Evans

, 941

F.2d 267, 272 (5th Cir.), cert. denied , 502 U.S. 972 (1991).

b. Was the court's order an abuse of discretion?

The three informants who were the subject of Wilson's motion gave

information that was included in affidavits supporting applications

for wiretaps in thi s case. Wilson sought to interview them in

connection with his motion to suppress evidence obtained by use of

wiretaps, or alternatively, moved that the informants be produced12

for pretrial interviews. Wilson alleged that the informants had

extensive knowledge of the conspiracy. Wilson concedes that he

knew the identity of all of the informants and the location of one

of them.

When gr anting or denying disclosure of the identity or

location of an informant, the court's discretion is guided by three

factors: (1) the level of involvement in the alleged criminal

activity, (2) the helpfulness of di sclosure to any asserted

defense, and (3) the government's interest in non-disclosure. Id.

The orde r denying Wilson's motion noted that Wilson failed to

present evidence that makes a sub stantial preliminary showing of

falsifications or misrepresentations in the affidavit, as he must

to establish his entitlement to go behind the affidavits. United

States v. Mueller

, 902 F.2d 336, 341 (5th Cir. 1990). Next the

trial court found that the government's reasons for withholding the

information were substant ial -- the informants' fear for their

personal safety, Wilson's pending indictment for witness tampering,

and the informants' statements that they did not wish to meet with

Wilson or his representative. Finally, the trial court noted that

Wilson failed to produce any evidence or specific allegations of

how these informants' t estimony might bear on his guilt or

innocence.

Finding no abuse of discretion, we affirm.

WIRETAPPED TELEPHONE CONVERSATIONS

Wilson argues that his motion to suppress tape recordings of

wiretapped telephone conversations should have been granted because13

the conversations were not "minimized" as required by law. 18

U.S.C. § 2518(5) and T EX

. C ODE C RIM

. P R OC . art. 18.20. At the

hearing, the parties adopted the transcript of the hearing on this

iss ue which the trial court held in the C lark case. The trial

court found that the "Government's conduct in minimization was both

objectively and subjectively reasonable." This Court affirmed a

similar ruling from the district court in Clark

. This is a factual

determination subject to the clearly erroneous standard of review.

Clark

, 67 F.3d at 1162. There is no basis for distinguishing this

case from the holding in Clark.

COCAINE BASE/POWDER COCAINE GUIDELINES

Wilson contends that the district court erred in denying his

motion to declare unconstitutional 28 U.S.C. § 991-98, 21 U.S.C. §

841, and U.S.S.G. § 2D1.1 insofar as they establish different

sentencing ranges fo r the distribution of the same amounts of

cocaine and cocaine base.

This argument has been foreclosed by Fifth Circuit precedent.

See United States v. Watson, 953 F.2d 895 (5th Cir.), cert. denied

,

112 S. Ct. 1989 (1992) (no violat ion of due process or equal

protection); United States v. Butler

, 988 F.2d 537 (5th Cir.),

cert. denied

, 114 S. Ct. 413 (1993) (not unconstitutionally vague);

and United States v. Fis her , 22 F.3d 574, 579 (5th Cir.), c ert.

denied , 115 S. Ct. 529 (1994) (not grossly disproportionate under

the Eighth Amendment).

Wilson's reliance on a proposed amendment to the Guidelines is

likewise without persuasive force. Amendment 505, adopted by the14

Sentencing Commission, bringing sentencing provisions for crack in

line with provisions for powder cocaine, was rejected by Congress

and the president. Pub. L. No. 104-38, 109 Stat. 334, Oct. 30,

1995.

CONCLUSION

For the foregoing reasons, we reverse Michael Wilson's

conviction and sentence under § 924(c) and affirm all other counts

of conviction. Having reviewed the record of Wilson's sentencing,

we have concluded that § 924(c) conviction did not impact the

calculation of the guideline range or the sentence imposed on the

remaining counts of conviciton. We therefore affirm the remaining

sentence.

REVERSED in part and AFFIRMED in part.